Exhibit 99.4
This Agreement, made this 7 day of
September, 2008, by and between RiT Technologies Ltd., an Israeli corporation, having its
principal place of business at 00 Xxxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxx 00000, Xxxxxx
(“RiT”), and Join Stock Company STINS XXXXX CORPORATION having its place of
business at 000, Xxxxxxxxxxxxx xxx, Xxxxxx, 000000 (the “Distributor”).
In consideration of the mutual
covenants and agreement hereinafter set forth, the parties agree as follows:
| 1. |
Grant
of Rights and Definition of Products and Territory |
| |
1.1. |
RiT
hereby appoints Distributor as a non-exclusive distributor of RiT’s
products described in Appendix A (the “Products”),
within the territory of CIS (the “Territory”), during the
Term (as defined below). Distributor hereby accepts the appointment
and undertakes to act faithfully and diligently as such a
non-exclusive distributor. |
| |
1.2. |
RiT
shall have the right, at its option, to delete Products from those shown in
Appendix A, if RiT ceases the production or supply of such Products,
provided RiT gives ninety (90) days prior written notice thereof to
Distributor; and provided further such termination shall not affect
RiT’s obligation to provide spare parts for such Products under
the other provisions of this Agreement. |
| |
1.3. |
The
Work Plan agreed upon between the parties is described in Appendix B attached
hereto. |
| |
1.4. |
RiT
shall not be responsible for the distribution, sale and/or use of the
Products in the Territory by third parties that have purchased the
Products outside of the Territory. |
| 2. |
Distributor’s
Obligations |
| |
2.1.1. |
To
maintain an adequate and aggressive sales organization to distribute and
procure sales, to actively promote and create a demand for the
Products, and to assure adequate advisory, installation and support
services. |
| |
2.1.2. |
To
act in furtherance of the best interests of RiT and at no time do, cause or
permit to be done, published or said, any information, act, or thing
from whatever source, which is or may be detrimental to the best
interests and/or business reputation of RiT. |
| |
2.1.3. |
To
advise to RiT regularly of sales results and if sales support is required. |
| |
2.1.4. |
To
notify RiT whenever there are changes in the territorial market which affect,
or might affect, Product sales. |
| |
2.1.5. |
To
coordinate with RiT Service Department on all matters relevant to maintaining
an efficient after-sale service. |
| |
2.1.6. |
To
fulfill its obligations under the Work Plan. |
| |
2.1.7. |
To
interest the Customer in the RiT Maintenance & Support Program at least
three months before the standard twelve month warranty period has
expired. |
| |
2.1.8. |
To
consent to receive all commercial email messages from RiT sent to any
authorized email address under the control of the Distributor and to
use its best efforts to obtain express consent from its customers to
receive commercial email messages from RiT. |
| |
2.2. |
If
Distributor sells or offers for sale products or services that may be
considered to be competitive with the products of RiT, Distributor
shall notify RiT promptly to this effect, in writing. In such written
notice, Distributor shall specify the name and address of the company
manufacturing such products and the company selling such products to
Distributor, and shall further specify such products in sufficient
detail so that RiT can determine whether such products are
competitive with the products of RiT. RiT shall thereafter have the
right to terminate this Agreement, if RiT determines that the
products of such company are competitive with the products of RiT. |
| |
2.3.1. |
Distributor
shall designate employees who shall participate in and complete
training as a carrier solutions expert. Travel and accommodation
expenses shall be paid by Distributor. |
| |
2.3.2. |
Distributor
undertakes to assign and to maintain a trained carrier solutions
expert who shall manage pre-sale marketing and post-sale technical
support of carrier solutions projects (the “Product Manager”). |
| |
3.1. |
RiT
will supply the Distributor, at no cost, with such aids and technical
assistance as RiT deems necessary to aggressively pursue and make
Product sales. |
| |
3.2. |
RiT
will, at no charge, supply Distributor with standard sales literature in the
English language and in reasonable quantities, as determined by RiT. |
| |
4.1. |
Delivery
of Products purchased by Distributor hereunder shall be made for and on
behalf of Distributor. |
| |
4.2. |
All
deliveries shall be Ex-Works RiT’s factory (Incoterms 2000) and risk of
loss or damage with respect to any of the Products to be delivered to
Distributor shall pass from RiT to Distributor accordingly. All
transportation, handling and insurance charges for any of the
Products from RiT’s point of shipment to destination shall be
borne by Distributor. |
2
| |
5.1. |
The
prices at which Distributor shall buy and RiT shall sell the Products bought
and sold hereunder shall be as per the RiT Distributor List Prices
existing at the time RiT accepts each purchase order. |
| |
5.2. |
RiT
shall have the right at any time to adjust its prices by giving Distributor
written notice to that effect not less than thirty (30) days prior to
the date upon which the adjusted price or prices are to become
effective. An increase in price shall not affect firm orders for
Products accepted by RiT during said thirty (30) day period, which
are to be delivered within three (3) months of the date of notice. In
the event of a price reduction, RiT will pass on such reduction to
Distributor on all parts not yet shipped at the time of the price
change. |
| |
The
acceptance of orders by RiT is conditioned upon Distributor placing an order according to
Section 8 hereinafter. |
| |
6.1. |
30%
of the price shall be paid in 30 days after the order received in RiT. 70% of the price
shall be paid in 30 days after the Products are delivered, at site, by presentation of
documents or the Parties reserve the rights to discuss the terms changes. |
| |
RiT
retains the right to change payment terms upon prior written notice. |
| |
6.2. |
For
the purpose of ensuring that RiT is paid for the Products sold or licensed
to Distributor, RiT reserves a security interest in the Products
until paid for in full by Distributor. RiT hereby authorizes
Distributor to transfer title to Products in the ordinary course of
its business, provided that in such case, Distributor hereby assigns
to RiT in advance any proceeds from the disposition of such products. |
| |
The
word “prices”, as used in this Agreement, shall exclude any taxes, import
duties, sales, use or privilege taxes, or excise or similar taxes or duties levied by any
country in the Territory upon RiT or the Products, as the result of any manufacture,
sale, delivery or use of any unit sold hereunder. Distributor shall be responsible for
the payment of any such taxes or duties which may be so levied by countries within the
Territory or in lieu thereof, for providing RiT with a tax-exemption certificate
acceptable to the taxing authorities. |
| |
8.1. |
All
purchase orders must be placed in writing and must contain the payment and
delivery terms. The terms of the order may not vary from the terms of
this Agreement without RiT’s prior written consent. RiT is under
no obligation to accept any particular order. If accepted, RiT shall
provide written confirmation of the order, noting prices, payment
terms and delivery dates. Changes in delivery schedules must be made
in writing and upon RiT’s consent. |
3
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Address
all orders and releases to: |
| |
RiT
TECHNOLOGIES LTD.
00 Xxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxx
00000, Israel
TEL: (x000-0) 0000000 FAX: (x000-0) 0000000
Attn.: Sales Administration |
| |
8.2. |
Mode
of transportation and the forwarder shall be specified by the Distributor.
RiT shall not be responsible for any delays arising due to Distributor’s
failure to specify the mode of transportation or forwarder. |
| |
8.3. |
RiT
may withhold shipment of Products because of the balance of
Distributor’s account or if determines that Distributor is not
financially reliable. If the foregoing conditions are not rectified
to RiT’s reasonable satisfaction, RiT may terminate this
Agreement pursuant to Section 18 below. Distributor shall not be
permitted to take a credit against amounts owed to RiT without prior
written authorization by RiT. |
| |
9.1. |
Distributor
agrees, at its cost, to carry a minimum representative stock of
Products, as determined by mutual agreement. |
| |
9.2. |
Distributor
shall purchase and maintain a spare parts inventory at a level, which
shall be determined by Distributor, at its full responsibility. |
| 10. |
Limited
Warranty and Limitation of Liability |
| |
10.1. |
RiT
warrants that all Hardware sold to Distributor under this Agreement will be
free from defects in materials and workmanship under normal use and
service for a period of twelve (12) months from the date of the
respective invoice (the “Warranty Period”). RiT will, at
its option, either repair or replace the Hardware, which RiT
determines to be defective in materials or workmanship, provided that
Distributor immediately notifies RiT in writing of any such defect,
and provided further that such notice is given within the Warranty
Period. In the event that RiT requests the return of the Hardware for
the purpose of its repair, Distributor shall deliver the defective
Hardware to RiT’s premises, at Distributor’s expense.
Replacement shall in all case mean making the replacement Hardware
available to the Distributor at RiT’s warehouse (Ex-Works). It
is clarified that the Warranty Period will not be extended in the
event that a repair or a replacement of Hardware is performed within
such Warranty Period. Distributor’s sole and exclusive remedy
with respect to defective Hardware will be limited to such repair or
replacement. This limited warranty does not cover damage due to
external causes including accident, usage not in accordance with
Product’s instructions, vandalism, misuse, abuse, neglect,
accident or improper handling, maintenance, operation, storage or
testing, or alterations, modifications, adjustments or repairs made
by persons other than RiT’s authorized service personnel. |
4
| |
The
Software is provided to Distributor in an “as is” condition. RiT SHALL HAVE NO
LIABILITY TOWARDS DISTRIBUTOR OR ANY ON OF ITS CUSTOMERS, FOR ANY ERRORS, MALFUNCTIONS OR
DEFECTS RESULTING FROM OR RELATED TO THE USE OF THE SOFTWARE. |
| |
RiT
does not warrant that the operation of the Hardware or Software will be uninterrupted or
error free. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, AND RiT HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR
WRITTEN OR ARISING BY PERFORMANCE, CUSTOM OR USAGE IN THE TRADE, WITH RESPECT TO THE
PRODUCT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. |
| |
Distributor
shall be responsible to its customers for any and all warranties which it makes relating
to Products and for ensuring that replacements and other adjustments required in
connection with the said warranties are satisfactory. |
| |
10.2. |
THE
SOLE REMEDIES FOR BREACH BY RiT OF ANY AND ALL WARRANTIES AND
DIRSTIBUTOR’S SOLE REMEDIES, WHETHER IN CONTRACT OR IN TORT,
ARISING FROM ANY PRODUCTS PROVIDED HEREUNDER, AND ANY OTHER
PERFORMANCE BY RiT OR PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO
THE EXPRESS REMEDIES PROVIDED HEREIN. IN NO EVENT SHALL RiT BE LIABLE
FOR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, THIRD-PARTY OR
CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOSS OF PROFITS ARISING OUT OF THE
USE OF THE PRODUCTS, OR OTHERWISE ARISING OUT OF, OR IN CONNECTION
WITH, THIS AGREEMENT, WHETHER OR NOT RiT WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. WITHOUT DEROGATION AND FOR SAKE OF
CLARITY, RiT SHALL NOT BE LIABLE FOR ANY ERRORS, MALFUNCTIONS,
DEFECTS, OR LOSS OF DATA RESULTING FROM OR RELATED TO THE USE OF THE
PRODUCT. |
| |
IN
NO EVENT SHALL RiT’S LIABILITY FOR DAMAGES OF ANY NATURE EXCEED AMOUNTS ACTUALLY
PAID BY DISTRIBUTOR TO RiT FOR PRODUCTS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING
THE EVENT GIVING RISE TO RIT’s LIABILITY. |
| |
Maintenance
services shall be provided by the parties pursuant to RiT’s standard customer
support program, which allocates first level and second level support between Distributor
and RiT. |
| 12. |
Equipment
Modification |
| |
RiT
shall have the right to modify, alter, or improve any or all of the Products, and shall
have the right to discontinue specific Products. Consequently, RiT may modify Appendix
A (by addition, deletion or otherwise) by written notice to Distributor, from time to
time, at its discretion. If RiT deletes a Product from Appendix A, such notice
shall be effective no fewer than sixty (60) days from the date of such notice. |
5
| 13. |
Independent
Contractor |
| |
Distributor
is an independent contractor and neither this Agreement nor the performance hereof will
be construed as creating between RiT and Distributor the relationship of employer and
employee, principal and agent, joint-venturers, co-partners or any other similar
relationship. Distributor will purchase Products for its own account and will be an
independent contractor in all respects. Neither party will be liable to any third party
in any way for any engagement, obligation, contract, representation or transaction, or
for any act or omission to act, of the other, and each party will indemnify the other and
hold it harmless against and from any liabilities as aforesaid. |
| |
14.1. |
All
proprietary rights in the Products shall remain solely with RiT, including,
but not limited to, copyrights, trademarks and patents. |
| |
14.2. |
The
Products listed in Appendix A, although primarily composed of
hardware components, are accompanied by and contain software which is
embedded therein and has already been installed on the various
components of each PairView/PairQ System which is proprietary to RiT
(the “Software”). The Software is provided under license
for each PairView/PairQ System pursuant to the RiT Software License
Agreement annexed hereto as Appendix C. |
| |
14.3. |
Except
as provided herein, the license granted to the Distributor and/or the
customer under the RiT Software License Agreement may not be sold,
assigned or transferred to any other party without RiT’s prior
written consent. |
| 15. |
Trademarks;
Trade Names; and Web Site Authorization |
| |
15.1. |
Unless
RiT otherwise directs or consents, in writing, Distributor will clearly
and conspicuously identify the Products as products of RiT and will
promote, advertise and describe the Products exclusively under RiT’s
trademarks, trade names, catalogue numbers and other designations and
terminology. Distributor will not use any such trademark or trade
names or the name of RiT in any way, except directly in connection
with the sale and marketing of the Products. Distributor’s use
of any RiT’s trademarks on any sales promotion, advertising or
stationery requires the express prior written approval of RiT after
submission of a sample to RiT. RiT grants Distributor the right to
include a hyperlink to RiT’s web site from Distributor’s
web site, for the purpose of this Agreement (the “Hyperlink”).
Distributor agrees that it shall hyperlink to RiT’s web page
during the Term using only the logo provided by RiT. |
| |
15.2. |
Distributor
grants RiT the right to include a hyperlink to Distributor’s web
site from RiT’s web site as determined within RiT’s sole
discretion, and to use Distributor’s trademark, service xxxx,
trade name or logo: (a) for such hyperlink; (b) in any publication
made by RiT and in accordance with this Agreement. Distributor
acknowledges and agrees that RiT does not support and has not
reviewed the contents of Distributor’s web site. Distributor
agrees that it is fully responsible for the content posted at its URL
address on its web site. |
| |
15.3. |
Distributor
will cooperate with efforts that RiT may undertake to register RiT’s
trademarks within the Territory. The Distributor will not register or
attempt to register any trademarks claimed or owned by RiT. In
addition, Distributor will not within three years after termination
of this Agreement, register or attempt to register any word, symbol,
or combination thereof that resembles or could be confused with a
trademark claimed by RiT. Distributor will notify RiT of any
infringements of copyright, trademark or other intellectual property
rights of RiT that come to the attention of Distributor. Distributor
agrees to reasonably cooperate with RiT in the investigation and
prosecution of such infringement claim. |
6
| 16. |
Confidential
Information |
| |
Simultaneously
with the signing of this Agreement the parties shall sign the Confidential Disclosure and
Non-Use Agreement, attached hereto as Appendix D (the “NDA”). Any breach
or threatened breach of the NDA shall be considered a material breach of this Agreement. |
| 17. |
Duration
and Termination |
| |
17.1. |
The
initial term of this Agreement shall be one (1) year from the date hereof
unless terminated sooner as provided herein (the “Term”).
This Agreement shall be automatically renewed for additional one (1)
year terms from the end of the Term, unless terminated by either
party, for any reason, upon thirty (30) days written notice, prior to
the expiration of the Term, or any additional term, as the case may
be. |
| |
17.2. |
This
Agreement may be terminated at any time by either party with or without
cause by giving forty-five (45) days written notice to the other
party. |
| |
17.3. |
Either
party may terminate this Agreement effective immediately by sending a
written notice to the other party, upon: (a) the breach by the other
party of any of its obligations hereunder (including, but not limited
to, the failure of Distributor, in RiT’s reasonable judgment, to
effectively promote the sale of the Products in the Territory, or to
meet credit or financial requirements established by RiT) and such
other party’s failure to cure such breach within thirty (30)
days of such notice; (b) a party’s impermissible assignment of
this Agreement; (c) termination or suspension of the other party’s
business; or (d) upon the filing of or against the other party of a
petition in bankruptcy, or seeking reorganization or arrangement, or
for the appointment of a trustee, liquidator or receiver, or the
filing by or against such other party of a petition under any
bankruptcy or insolvency law or upon an assignment for the benefit of
creditors or a composition with creditors or any similar action in
consequence of debt. It is a party’s duty to notify the other
party in writing of the occurrence of any of the above events. |
7
| 18. |
Effect
of Termination |
| |
18.1. |
Upon
termination of this Agreement for any reason, (a) Distributor’s right
to distribute the Products will immediately terminate, (b) all rights
and any license or permission granted to Distributor with respect to
RiT’s trademarks will terminate, and Distributor will
immediately cease to use or display any trademarks, trade names, logo
name of RiT or any other rights or licenses (“Marks”), and
shall remove the Hyperlink, and (c) Distributor will immediately
return to RiT all RiT’s information and any other data or
information (including Confidential Information, as such term is
defined in the NDA) or demonstration equipment it will have received
during or in connection with this Agreement and will make no further
use of it without the prior written consent of RiT, without retaining
any copies thereof. |
| |
18.2. |
Notwithstanding
the provisions of Section 18 to the contrary, and only in the event
of termination by RiT pursuant to Sections 17.1 or 17.2 above, all orders
received and confirmed by RiT prior to the date of termination notice
shall remain in effect, and Distributor may continue, for a limited
period of three (3) months as of date of termination notice, to sell
Products which it has in inventory, as well as such Products to be
delivered pursuant to confirmed purchase orders placed by Distributor
with RiT, until such date of termination notice. The distribution of
Products by Distributor during such limited 3-months period shall be
in accordance with the terms of this Agreement, mutatis mutandis. |
| |
18.3. |
Within
thirty (30) days following termination of the Agreement, Distributor will
render a final accounting to RiT accompanied by payment of any sums
owed to RiT. |
| |
18.4. |
Termination
of this Agreement will not affect Distributor’s payment
obligations and any of Distributor’s obligations which exist as
of the date of termination, or which, by the context of this
Agreement, are intended to survive its termination. |
| |
18.5. |
Without
derogating from any of the aforementioned, Distributor agrees and
acknowledges that it has fully taken into account and considered the
implications of Section 18, and that upon such termination it will
not have any right or entitlement to any compensation, payment or
demand of any kind arising out of or in connection with such
termination, or with respect of loss of anticipated income or profit
or for capital investments in its business or in the promotion of the
Product in the Territory or for any other matter. Distributor further
agrees and acknowledges that all recognition and goodwill associated
with the Marks, the name of RiT, the Products and their distribution
in the Territory will be owned at all times by RiT alone, and in the
case of termination of this Agreement, Distributor will not be
entitled to any compensation or payment therefore and Distributor
will not be deemed to have created or retained any proprietary right
in any of the above. |
8
| 19. |
Representations
of Distributor |
| |
Distributor
represents and warrants that, in performing work for RiT under this Agreement, it will
not be using any trade secrets or confidential information of any company which may be
considered to constitute a competitor of RiT and (a) with which Distributor may have been
previously associated as a distributor for the products of such company, or (b) with
which Distributor may now be associated as a distributor for the products of such
company, or (c) with which Distributor may hereafter be associated as a distributor for
the products of such company during the Term of this Distributor Agreement. |
| |
Distributor
further represents and warrants that it does not have in its possession or control any
documents or physical exhibits which disclose trade secrets or confidential information
of any company which may be considered to constitute a competitor of RiT. |
| |
20.1. |
This
Agreement and the appendices thereto consist an integral part hereof. This
Agreement may not be modified except by written instrument signed by
a duly authorized representative of each party hereto. This Agreement
or any part thereof may not be assigned by Distributor without the
prior written consent of RiT. RiT has the right to assign this
Agreement to one of its affiliated companies, without consent. This
Agreement consists of the entire agreement and understanding between
the parties with respect to the subject matter hereof and supersedes
all prior written or oral agreements with respect hereto. Any failure
by any party hereto to enforce strict performance by the other party
of any provision herein shall not constitute a waiver of the right to
subsequently enforce such provision or any other provision of this
Agreement. |
| |
20.2. |
In
the event of invalidity of any provision of this Agreement, the parties agree
that such invalidity shall not affect the validity of the remaining
portions of this Agreement, and further agree to substitute for such
invalid provision a valid provision which most closely approximates
the intent and economic and legal effect of the invalid provision. |
| |
20.3. |
This
Agreement may be executed in any number of facsimile counterparts, each of
which shall be deemed an original and enforceable against the parties
actually executing such counterpart, and all of which together shall
constitute one and the same instrument. |
| |
20.4. |
Any
notice required or desired to be given under this Agreement by one party to
the other shall be in writing and shall be deemed to have been duly
given upon delivery: if manually delivered on the same business day;
or, if mailed by registered or certified mail, postage prepaid, after
five (5) days from the date of mailing; or if by facsimile
transmission which gives the sender proof of delivery, on the first
business day after such transmission, to the respective party’s
address as set forth above or to such other address or fax number of
which notice has been given in the manner above provided, to the attention of
the parties noted below: |
|
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|
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to RiT: |
to Distributor: |
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Attn: Senior Vice President Sales |
Attn:. Didenko V.S, CEO |
| |
20.5. |
This
Agreement shall be governed by, and construed in accordance with, the laws
of the State of Israel. The parties hereto hereby submit to the
exclusive jurisdiction of the courts of Tel-Aviv-Jaffa. |
9
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement the day and year first above written.
Distributor
By: JSC STINS XXXXX CORPORATION
——————————————————————
Didenko Xxxxxx Xxxxxxxxxxx
Title: CEO |
RiT Technologies Ltd.
By: RIT TECHNOLOGIES LTD
———————————————————————
Name: Avi Kovarsky
Title: President, CEO |
10
Appendix A
RiT’S DISTRIBUTOR
PRODUCTS
PairView# system
NGPair system
PairQ system
PairGuide
00
Xxxxxxxx X
WORK PLAN
| |
Sales
of carrier solutions require an understanding of telecommunications industry and
telecommunications providers. It is RiT’s goal to guide and support the Distributor
throughout the sales process and promotion of its products by developing a detailed and
comprehensive business plan. |
| |
The
Distributor agrees to submit a one year business plan within thirty (30) days after
signing this Agreement. The business plan should be broken down into four (4) quarterly
forecasts, commencing sixty (60) days from date of such forecast. Distributor shall
update such rolling forecasts every three (3) months thereafter and shall use its best
efforts to achieve such rolling forecasts. |
| |
The
plan should include at least the following: |
| |
1.1. |
Territory
Structure – The Distributor commits to provide RiT with relevant
data regarding the telephone companies in the Territory, including,
but not limited to, organizational structure, number of subscribers,
types of services and financial data. |
| |
1.2. |
Decision
Making Process – The Distributor commits to provide RiT with the
particulars of the decision making process of the telephone companies
in the Territory. |
| |
1.3. |
Top
Management Presentation – The Distributor commits to arrange and
conduct with RiT joint presentations of the Products to the top
management of the telephone companies in the Territory. |
| |
1.4. |
Demonstrations
– The Distributor commits to actively conduct pre-sale
presentations and demonstrations to customers. Presentations will
preferably be given by Distributor’s sales staff. |
| |
1.5. |
Field
Trials – Distributor agrees to take full responsibility of any field
trial that may be required in the Territory. In case RiT decides to
perform such a trial, the Distributor commits to arrange all the
logistics and approvals for it and commits to include it in the
business plan. |
| |
Main
candidates for this work plan are (list of telephone company names): |
| |
MGTS____________________________________________ |
| |
_________________________________________________ |
12
| |
Distributor
is entitled to receive the following marketing aids, free of charge, at quantities to be
agreed upon: |
| |
2.1. |
RiT
PairView User’s Guide; |
| |
2.2. |
RiT
PairView Brochure – English; |
13
Appendix C
RiT SOFTWARE LICENSE
AGREEMENT
THIS LICENSE AGREEMENT IS A LEGALLY
BINDING AGREEMENT BETWEEN YOU, THE COMPANY THAT WILL BE UTILIZING THE PRODUCT (REFERENCED
BELOW AS “YOU” OR “YOUR”) AND RiT TECHNOLOGIES LTD.
(“RiT”). BY INSTALLING THE SOFTWARE OR USING THE PRODUCT, YOU ACCEPT ALL
THE TERMS HEREOF. IF YOU DO NOT AGREE TO ALL OF THE TERMS HEREOF, DO NOT INSTALL THE
SOFTWARE OR USE THE PRODUCT OR ANY PART THEREOF, AND RETURN THE PRODUCT WITH THE
SOFTWARE TO THE PLACE WHERE YOU OBTAINED THEM.
| 1.1 |
The
software, both accompanying and installed on the RiT Product (the “Product”),
provided to You, and any documentation accompanying this License Agreement whether on
disk, in read only memory, on any other media or in any other form (collectively the
“Software”) is licensed, not sold, to You by RiT for use only for the
Purpose (as defined below) under the terms hereof, and RiT reserves all rights not
expressly granted to You. You may not make any use of the Software, in whole or in part,
for any use that is not expressly permitted by this License Agreement. |
| 1.2 |
RiT
retains all rights, copyrights (and any other applicable intellectual property rights),
title and interest in and to the Software itself, which is protected by copyright laws,
international copyright treaties, and trade secret laws, as well as other intellectual
property laws and treaties. |
| 1.3 |
RiT
shall have no obligation with respect to installation, support and maintenance of the
Software, neither shall RiT have any obligation to provide You with updates, upgrades or
new releases to the Software. If You elect in the future to purchase RiT’s updates,
upgrades or new releases for the Software, then the terms of this License Agreement will
govern any such Software upgrades or updates or new releases (which shall also be
referred to hereunder as the “Software”), unless any such upgrades or updates
is accompanied by a separate license in which case the terms of that license will govern. |
| 2.1 |
RiT
grants You under all intellectual property rights owned or controlled by RiT and/or RiT’s
licensor(s) and embodied in the Software, a limited, non-transferable, non-exclusive,
non-assignable, non-sublicensable license to use the Software provided to You for the
sole and exclusive purpose of using the Product (the “Purpose”). Except
as expressly provided herein, no other license, express or implied, is granted. |
| 2.2 |
This
License Agreement allows You to install and use the Software only as required for use
with the Product. You may either (a) make one copy of the Software solely for backup or
archival purposes; provided that any such backup copy includes all copyright or other
proprietary notices contained on the original or (b) transfer the Software to a single
hard disk provided that you keep the original solely for backup or archival purposes. |
| 3.1 |
Except
as expressly authorized herein, You shall not: (A) use the Software with any other
product, other than the Product; (B) copy, adapt, vary, enhance or modify any portion of
the Software, nor permit any person or entity under Your control to do so; (C) take any
action designed to defeat the operation of any security measure incorporated in the
Software; (D) publish, distribute, sell, disclose, market, sublicense, rent, lease,
display, provide, transfer or make available the Software, or any portion thereof, to any
third party; (E) use the Software in any manner not authorized by this License Agreement. |
14
| 3.2 |
The
Software contains copyrighted material, trade secrets and other proprietary information.
You agree to protect the Software from unauthorized copying or use. The source code for
the Software and other trade secrets embodied in the Software are not disclosed to You.
In order to protect the Software, and except as specifically permitted by statute by a
provision that cannot be waived by contract, You may not “unlock”, decompile,
reverse engineer, disassemble or otherwise translate the Software, or otherwise make any
attempt to discover the source code of, modify, or create derivative works from the
Software or any part thereof, nor permit any person or entity under Your control to do
so. In no event may You alter, remove or destroy any copyright notice or other
proprietary notices included in the Software. |
| 3.3 |
No
rights or licenses are granted by RiT and/or RiT’s licensor(s) to You, expressly or
by implication, with respect to any proprietary information or patent, copyright,
trademark, trade secret, or other intellectual property right owned or controlled by RiT
and/or RiT’s licensor(s), except as expressly provided in this License Agreement. |
| 3.4 |
If
you breach any of these restrictions, you may be subject to prosecution and damages. |
| 4. |
Default
and Termination |
| 4.1 |
The
license granted under this License Agreement is effective until terminated. Your rights
under this License Agreement will terminate automatically without notice from RiT if You
fail to comply with any term of this License Agreement. Upon the termination of this
License Agreement, You shall cease all use of the Software, and destroy, and certify the
destruction of, all copies, full or partial, of the Software. |
| 4.2 |
Notwithstanding
the aforementioned to the contrary, RiT may immediately terminate this License Agreement
without notice or liability and be entitled to immediate possession of the Software,
without prejudice to any other rights or remedies which RiT may have, upon the occurrence
of any of the following events: (i) You are involved in any voluntary or involuntary
bankruptcy proceeding or any other proceeding concerning insolvency, dissolution,
cessation of operations, reorganization, indebtedness or the like and the proceeding is
not dismissed within sixty (60) days; (ii) You become insolvent or unable to pay Your
debts as they mature in the ordinary course of business or make an assignment for the
benefit of Your creditors; (iii) You become a party to a merger or consolidation,
transfers all or substantially all of Your business and assets to a third party and in RiT’s
sole opinion, a material conflict of interest occurs with respect to the retention of
Software; or (iv) RiT believes that improper use or disclosure of the Software has
occurred or is about to occur. |
| 4.3 |
You
recognize and agree that the Software constitutes a commercially valuable asset of RiT,
and that the design and development of such materials reflects the effort of skilled
development experts and the investment of considerable time and money. Accordingly, You
acknowledge and agree that monetary damages will not be sufficient to compensate RiT in
the event of Your breach or violation of this License Agreement, and that RiT will be
irreparably harmed by such breach or violation, and that RiT shall have the right to seek
other remedies available to it in law and equity to remedy such breach or violation,
including injunctive and equitable relief. |
| 4.4 |
The
provisions of Section 3 (Restrictions), Section 4 (Default and Termination), Section 7
(Limitation of Liabilities) and Section 9 (Miscellaneous) shall survive any termination
or expiration of this Agreement. |
15
| 5.1 |
All
Third Party Software delivered by RiT as part of the Software is supplied “AS IS”.
In the case of any problem incurred with relation to Third Party Software, You will look
solely to the warranties and remedies, if any, provided by the Third Party Software. By
accepting the terms hereof, pursuant to the preamble above, you waive any possible claim
towards RiT with relation to such Third Party Software. |
| 5.2 |
If
the Software, or any part thereof, has been delivered by RiT on physical media, RiT
warrants the media to be free from material physical defects for a period of ninety (90)
days after delivery. If such a defect is found, return the media to RiT for replacement
or alternate delivery of the Software as RiT may select. Such warranty shall not apply to
defects, which result, in whole or in part, directly or indirectly, from: vandalism,
improper use, handling or storage or any reason beyond RiT’s reasonable control,
including without limitation, any events of force majeure. THIS LIMITED WARRANTY ON THE
MEDIA IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES
(IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGING OR OTHERWISE. |
| 6. |
Exclusion
of other Warranties |
| |
YOU
EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT
THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS SOLELY
WITH YOU. THE SOFTWARE IS SUPPLIED “AS IS” AND WITH ALL FAULTS, AND WITHOUT
WARRANTY OF ANY KIND. RiT AND RiT’S LICENSOR(S) (COLLECTIVELY REFERRED TO AS “RiT”FOR
THE PURPOSES OF SECTIONS 6 AND 7) DO NOT WARRANT THAT THE USE OF THE SOFTWARE WILL BE
UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR SPECIFIC REQUIREMENTS. RiT MAKES NO WARRANTY
OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS AND LACK OF NEGLIGENCE. RiT DISCLAIMS ANY
WARRANTY OF NON-INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS REGARDING
THE SOFTWARE OR USE OF THE SOFTWARE. |
| 7. |
Limitation
of Liabilities |
| |
RiT’S
ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT RiT’s OPTION EITHER (A)
RETURN OF PAYMENT; OR (B) REPAIR OR REPLACEMENT OF THE SOFTWARE. IN NO EVENT SHALL RiT BE
LIABLE FOR ANY PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR
INDIRECT DAMAGES, IN CONNECTION WITH OR ARISING FROM THE LICENSE GRANTED HEREIN OR YOUR
USE OF OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY,
AND REGARDLESS OF WHETHER RiT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COMPUTER TIME, LABOR COSTS, LOSS OF
DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF BUSINESS INFORMATION,
OR LOSS OF USE OR INTERRUPTION OF BUSINESS, OR OTHER PECUNIARY LOSS. IN NO CASE SHALL RiT’S
AGGREGATE LIABILITY UNDER THIS LICENSE AGREEMENT OR ARISING OUT OF YOUR USE OF THE
SOFTWARE EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT. |
16
| |
This
License Agreement constitutes the entire agreement between the parties with respect to
the use of the Software licensed hereunder and supersedes all prior or contemporaneous
understandings regarding such subject matter. No amendment to or modification of this
License Agreement will be binding unless in writing and signed by RiT. This License
Agreement shall be governed by, and construed in accordance with, the laws of the State
of Israel. The parties hereto hereby submit to the exclusive jurisdiction of the courts
of Tel-Aviv-Jaffa. |
17
Appendix D
CONFIDENTIAL
DISCLOSURE AND NON-USE AGREEMENT
THIS AGREEMENT is entered into
as of September, 2008 by and between Distributor, a Join Stock Company STINS XXXXX
CORPORATION [corporation] having its principal place of business at 000, Xxxxxxxxxxxxx
xxx, Xxxxxx, 000000 (“Distributor”), and RiT TECHNOLOGIES LTD., an
Israeli corporation, having its principal place of business at 00 Xxxxx Xxxxxxxxxx Xxxxxx,
Xxx Xxxx 00000, Israel (“RiT”).
In
the course of the business engagement of RiT and Distributor, RiT may disclose to
Distributor “Confidential Information” (as hereinafter defined), now therefore,
Distributor hereby undertakes and agrees, as a material condition for any disclosure of
any Confidential Information to be made from RiT or on its behalf to Distributor, to
strictly abide by the terms and conditions set forth below:
1.
For purposes hereof, “Confidential Information” shall include all and
any information of a confidential or proprietary nature, whether or not
patentable that has been or will be disclosed to Distributor by RiT or any
person or entity on its behalf, including without limitation, any technical,
commercial and financial information, conceptions, developments, ideas,
discoveries, improvement, inventions, know how, innovations, technology, trade
secrets, professional secrets, copyrights and any other intellectual property,
whether communicated orally or written or on disk or by electronic media or in
any other media, way or method (including, but not limited to, documentation,
drawings, reports, surveys, correspondence, formula, data, specification,
materials, processes, models, prototypes, drawings, blueprints, designs,
manuals, specification documents, documentation, source or object codes, tape
discs and other storage media, letters, notes, notebooks, reports, and all other
materials or devices, or the like). RiT shall determine in its sole discretion
what information and materials it shall disclose to Distributor.
2.
Distributor shall (i) use the Confidential Information solely and exclusively
for the purpose of distribution installation and support of RiT Carrier line of
products pursuant to the terms and conditions of the Distribution Agreement
signed between the parties on ___________ (the “Purpose”); (ii)
treat and maintain all Confidential Information in the strictest confidence,
using the same degree of care Distributor uses to protect its own confidential
information, and not less than the highest degree applied in the hi-tech
industry; (iii) not make any copies of Confidential Information (in any medium)
without the prior express written consent of RiT; (iv) not disclose or transfer,
directly or indirectly, the Confidential Information or any part thereof, or any
document or other material (in any medium), which contains, summarizes or
embodies the Confidential Information or any part thereof, to any person, firm,
corporation or any other entity, at any time without the prior express written
consent of RiT; and, (v) not disclose any Confidential Information to any of its
employees except to such employees who require access to the Confidential
Information for the Purpose (the “Authorized
Employee(s)”), it being understood that any disclosure of
Confidential Information to any Authorized Employee will be only on a need to
know basis, and that Distributor will, prior to any such disclosure, cause each
such Authorized Employee individually to execute identical undertakings of
Distributor’s as such are set forth in this Agreement, other than the right
to further disclose this information as provided in this Section 2(v). In
conjunction with this paragraph, Distributor represents that it has instituted
policies and procedures that provide an adequately high degree protection for
its own and other third parties’ Confidential Information.
3.
For the purpose of this Agreement, Confidential Information shall not include
any information which (a) is in the public domain at the date of the signing
hereof or which becomes part of the public domain thereafter, other than through
Distributor’s or any of its employees’ breach of this Agreement; or
(b) is disclosed pursuant to a court order, provided Distributor at the request
and expense of RiT, uses reasonable efforts to limit such disclosure to the
extent requested.
18
4.
Upon the first request of RiT, Distributor shall promptly deliver, and cause any
of its Authorized Employees to promptly deliver, and not later than within three
(3) days, to RiT any and all originals and copies of all documents and any and
all materials (in any medium), which contain, summarize or embody the
Confidential Information or any part thereof, which are then in the possession
of Distributor or under its control.
5.
Distributor shall not acquire any rights in the Confidential Information and
this Agreement shall not be construed in any way to grant Distributor any right
or license with respect to Confidential Information other than the right to use
Confidential Information strictly in accordance with the terms of this Agreement
and solely for the Purpose.
6.
Distributor agrees that money damages would not be a sufficient remedy for any
breach of this Agreement and that RiT shall be entitled to injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of this
Agreement, without the necessity of proving actual damages. Such remedy shall
not be the exclusive remedy for any breach of this Agreement, but shall be in
addition to all other rights and remedies available at law or in equity.
7.
Neither party hereto shall disclose the existence or subject matter of the
relationship contemplated hereunder or the possibility of a business engagement
between the parties.
8.
This Agreement shall become effective as of the date set forth below.
Distributor’s obligations hereunder shall survive the termination of this
Agreement, for any reason whatsoever, and shall remain in effect for an
unlimited period of time.
9.
This Agreement may not be modified except by written instrument signed by a duly
authorized representative of each party hereto. This Agreement or any part
thereof may not be assigned by Distributor. This Agreement consists of the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes all prior written or oral agreements with
respect hereto. Any failure by RiT to enforce strict performance by Distributor
of any provision herein shall not constitute a waiver of the right to
subsequently enforce such provision or any other provision of this Agreement.
10.
Any notice required or desired to be given under this Agreement by one party to
the other shall be in writing and shall be deemed to have been duly given upon
delivery: if manually delivered on the same business day; or, if mailed by
registered or certified mail, postage prepaid, after five (5) days from the date
of mailing; or if by facsimile transmission which gives the sender proof of
delivery, on the first business day after such transmission, to the respective
party’s address as set forth above or to such other address or fax number
of which notice has been given in the manner above provided.
11.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Israel. The parties hereto hereby submit to the exclusive
jurisdiction of the courts of Tel-Aviv-Jaffa. Notwithstanding the
aforementioned, RiT may seek enforcement of this Agreement through any court or
execution office of any other jurisdiction in which a breach of any of
undertakings hereunder may be anticipated or in which a breach is so alleged.
19
IN WITNESS WHEREOF, each party
hereto has executed this Agreement by a representative duly authorized as of the date set
forth above.
Signed as of this 7 day of September, 2008
20
